OC Immigration Attorney

FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who entered the United States without inspection or parole. The respondent was served a Notice to Appear on May 14, 1997, and in due course applied for cancellation of removal for nonpermanent residents and, in the alternative, for voluntary departure.

In 1997 the respondent was convicted for corporal injury to a spouse in violation of § 273.5 of the California Penal Code, for which he was sentenced to probation on the condition that he serve 90 days in custody. The IJ determined that the conviction was for a crime involving moral turpitude. The IJ further determined that the respondent was not eligible for the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), because he had not been convicted of “only one crime.” The IJ based this finding on the respondent’s 1994 conviction for battery under § 242 of Cal. Pen. Code. A crime not involving moral turpitude. The Immigration Judge accordingly found that the respondent was ineligible for cancellation of removal because he had been convicted of an offense under section 212(a)(2).

The IJ further found that the respondent could not meet the good moral character requisite under 240A(b)(1)(B) of the Act because of his 1997 conviction.

ISSUES

(1)    Whether an alien is ineligible for cancellation of removal under section 240A(b)(1) of the Act if he committed a crime involving moral turpitude that falls within the “petty offense” exception in section 212(a)(2)(A)(ii)(II); and, if not

(2)    Whether the commission of another offense that is not a crime involving moral turpitude renders the “petty offense” exception inapplicable.

RULE

1) An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude.

2) An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal.

3) An alien who commits a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal.

HOLDING

1. An alien who has been convicted of a crime involving moral turpitude that falls within the “petty offense” exception in section 212(a)(2)(A)(ii)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(ii)(II) (1994), is not ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, 8 U.S.C. § 1229b(b)(1)(C) (Supp. IV 1998), because he “has not been convicted of an offense under section 212(a)(2)” of the Act.

2. An alien who has committed a crime involving moral turpitude that falls within the “petty offense” exception is not ineligible for cancellation of removal under section 240A(b)(1)(B) of the Act, because commission of a petty offense does not bar the offender from establishing good moral character under section 101(f)(3) of the Act, 8 U.S.C. § 1101(f)(3) (Supp. IV 1998).

3.  An alien who has committed more than one petty offense is not ineligible for the “petty offense” exception if “only one crime” is a crime involving moral turpitude.

4. The respondent, who was convicted of a crime involving moral turpitude that qualifies as a petty offense, was not rendered ineligible for cancellation of removal under section 240A(b)(1) of Act by either his conviction or his commission of another offense that is not a crime involving moral turpitude.

REASONING

A. Applicability of the “Petty Offense” Exception to Cancellation of Removal Eligibility

The court concluded that respondent’s 1997 conviction for spousal injury did not render him ineligible for cancellation of removal under section 240A(b)(1)(C), or sections 240A(b)(1)(B) and 101(f)(3) of the Act, because the conviction, considered alone, clearly qualifies for the “petty offense” exception. The court reasoned that because the respondent was convicted under a misdemeanor statute that carried a maximum sentence of no more than 1 year in prison and he received a sentence of less than 6 months. Thus, the court concluded that the respondent would not be inadmissible on the basis of this offense.

The Court further found that the conviction, standing alone, does not render the respondent ineligible for cancellation of removal under section 240A(b)(1)(C) of the Act, which requires an applicant to show that he “has not been convicted of an offense under section 212(a)(2).” The court reasoned that a “petty offense” exception also applies when determining eligibility for cancellation of removal.

Furthermore, the court concluded that on the basis of his 1997 conviction alone, that respondent was not an alien “described in” section 212(a)(2)(A) of the Act for purposes of the good moral character definition in section 101(f)(3) because an alien is not within the class of aliens described in section 212(a)(2)(A) if the “petty offense” exception applies to his or her crime.

B. “Only one crime” exception to 212(a)(2)(A)(ii) of the Act.

The court further construed the “only one crime” proviso as referring to “only one such crime,” meaning it had to involve a crime of moral turpitude. The court reasoned that while the IJ view would mean that the commission of any offense—even one of a very minor nature, such as a driving infraction—would preclude application of the “petty offense” exception the court believed that the far more sensible construction is to read the word “crime” in the context of offenses that are the subject matter of section 212(a)(2)(A). Viewed in this fashion, the court stated, the word “crime” refers most logically to a crime involving moral turpitude.

C. Voluntary Departure

For the above mentioned reasons, the court concluded that the conviction does not bar respondent from this form of relief on statutory grounds.

CONCLUSION: The respondent’s appeal is sustained.

If you are currently in immigration court proceedings, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you and help you better understand the options available to you in order to avoid deportation.

We attended a merits hearing last week for one of our clients in Anaheim Hills. The hearing was scheduled for cancellation of removal for lawful permanent resident, and we were prepared and confident in moving forward with the case. Our client committed a minor crime almost forty years ago, but Immigration and Customs Enforcement pursued deportation several years ago. The client has lived in the US for decades and all of his family lives in the US. He has almost no family in his home country.

We were prepared to show evidence that our client was eligible for cancellation of removal and it should be granted as a matter of discretion. However, when we arrived at the hearing the government attorney notified me that they intended to move for termination. She had reviewed the file and she did not believe deportation was appropriate in this case.

My client was not forced to testify, and he and his family were pleased that this matter would be put to rest. Over the last few years, he was very stressed about this case. Although I assured him countless times that our case was very strong and I was confident we would win, the prospect of moving back to his home country and being separated from his wife and children terrified him.

Now that the case is over, he is considering naturalization so he can become a US citizen. If you or a loved one is in immigration court, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will meet with you to help you better understand the options available to you.

Facts:
Vasquez-Hernandez is a native and citizen of Mexico. He entered the U.S. without inspection in 1988. He was convicted of corporal injury to a spouse in 2002. On August 9, 2002, the Immigration and Naturalization Service (INS) placed him in removal proceedings. Vasquez-Hernandez conceded removability.

In 2004, the IJ rejected Vasquez-Hernandez’s cancellation of removal request and held that he was “statutorily ineligible” because his conviction was for a crime of domestic violence as stated in 8 U.S.C. Section 1227(a)(2)(E).

IJ denied his motion to reopen after ruling that the petty offense exception in 8 U.S.C. section 1182(a)(2)(A)(ii) did not apply to his conviction.

Procedural Posture:
BIA adopted the IJ’s decision and denied Vasquez-Hernandez’ motion to reopen.
He filed a petition for review with the 9th Circuit.

Issue:
Whether the petty offense exception in 8 U.S.C. Section 1182(a)(2)(A)(ii) is applicable to an 8 U.S.C. Section 1229(b) cancellation of removal request if that request is otherwise barred by an alien’s conviction for an offense described in section 1227(a)(2) or section 1227(a)(3).

Holding:
Denied Vasquez-Hernandez’ petition for review of BIA’’s order denying his motion to reopen.

Rule:
The petty offense exception is not applicable to section 1227(a)(2) domestic violence offense for cancellation of removal regardless of whether the conviction may meet the petty offense exception requirements.

Reasoning:
Vasquez-Hernandez was convicted of a crime under the “plain terms of section 1229(b),” a domestic violence crime. The Ninth Circuit reasoned that the petty offense exception statute did not reference section 1227(a)(2) or section 1229b(b). There was no other statutory basis for applying the petty offense exception here.

If you or a loved one is in removal or deportation proceedings in immigration court, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you on a confidential basis to help you better understand the options available to you.

Facts:
In Matter of Stockwell, a 46-year-old male, native and citizen of the United Kingdom, entered the U.S. in 1987 as a visitor. He married a U.S. citizen in 1987 and was granted permanent resident status on a conditional basis. They divorced in 1988, and he married a second U.S. citizen on July 6, 1989. His new wife filed a visa petition on his behalf that was approved on September 19, 1989. He was placed in deportation hearing on July 14, 1989 because his conditional permanent residency terminated. IJ found that Stockwell was deportable since his conditional permanent resident status had been terminated. He granted his application for adjustment of status.

Procedural Posture:
IJ found that Stockwell was deportable since his conditional permanent resident status had been terminated. He granted his application for adjustment of status.
The USCIS appealed on the ground that the Congressional intent of 245(d) was to exclude aliens who have had their conditional status terminated as well as those continuing to hold conditional status.

Issue:
Whether section 245(d) of the INA (“Act”) prohibits an alien whose conditional permanent resident status has been terminated from adjusting status under section 245(a) of the Act.

Holding:
No. Affirmed IJ’s holding that Stockwell be granted to adjust status based on his second marriage to a U.S.C. wife.

Rule:
An alien holding conditional permanent resident status is prohibited by section 245(d) of the Immigration and Nationality Act, 8 U.S.C. Section 1255(d)(1988), from adjusting his status under section 245(a), but Section 245(d) of INA does not prohibit an alien whose conditional permanent resident status has been terminated from adjusting his status under section 245(a).

Reasoning:
The Board focused on the congressional intent of 245(d), which was to prevent aliens from circumventing the immigration legal system through fraudulent marriages. By barring adjustment of status during the 2-year conditional period, Congress sought to prevent aliens from acquiring conditional permanent residency through marriage only to adjust status on another basis. This way, they might have tried to bypass the requirements for removing the conditions of residence. Therefore, the Board reasoned that section 245(d) of the Act was not intended to prohibit an alien whose conditional permanent resident status had been terminated from adjusting status under 245(a).

If your I-751 has been denied by USCIS and your case has been transferred to the immigration court, contact The Nunez Firm to schedule a consultation. Managing attorney Jay Nunez will personally meet with you to help you better understand the options available to you.

Facts:
Rainford was a native and citizen of Jamaica. He was admitted to the U.S. as lawful permanent resident on March 27, 1988. On April 30, 1991, he was convicted for criminal possession of a weapon.  The Immigration and Naturalization Service charged him with deportability as an alien convicted of a firearms offense under section 241(a)(2)(C) of the Immigration and Nationality Act. Rainford conceded deportability but was eligible for adjustment of status to permanent resident if he can show “admission.” Rainford was found deportable by the immigration judge on June 17, 1992. IJ held based on Matter of V-, 1 I&N Dec. 293 (BIA 1942) that Rainford was inadmissible because he would become immediately subject to deportation upon entry.

(Rainford had a U.S.C. father. As a son of a U.S. citizen, he is under family first preference for purpose of eligibility for a family based immigrant visa.  His priority date was also current.)

Procedural Posture:
Therefore, he was found to be ineligible for AOS.
Rainford appealed.

Issue:
(1) Whether Rainford would become immediately subject to deportation upon entry due to his criminal conviction.
(2) Whether Rainford is admissible to the U.S., thereby meeting the second condition for AOS eligibility.

Holding:
(1)    No (see reasoning)
(2)    Yes. BIA Held that Rainford was admissible to the U.S. and therefore eligible for AOS; remanded case to IJ.

Rule:
An alien convicted of criminal possession of a weapon is deportable. However, such a conviction does not preclude a finding of admissibility in connection with an application for adjustment of status, and it may not serve as a ground of deportability if the alien’s status is adjusted to that of a lawful permanent resident.

Reasoning:
Compared Matter of Rafipour, 16 I&N Dec. 470 (BIA 1978) and used it as a key case.
The BIA ruled in Matter of Rafipour that an alien would no longer be deportable pursuant to section 241(A)(5) of the Act for his earlier conviction, once he was admitted as a lawful permanent resident. Likewise, the Board in the instant case reasoned that Rainford was deportable for a crime for which there is no corresponding ground of exclusion explicitly stated in the Act. Further, the Board reasoned that there was “no indication in the Act or its legislative history that Congress ever intended to bar this class of aliens . . . from becoming lawful permanent residents.” Although the ground of deportability was different from Matter of Rafipour, the Board extended the same reasoning to Rainford’s ground of deportability.

Facts:
Armando Garcia, a native and citizen of Mexico, was admitted to the U.S. as a lawful permanent resident on or about March 3, 1999. He was convicted of misdemeanor assault and battery, domestic abuse on October 23, 2001. The maximum penalty for this crime was imprisonment for 1 year, but he was sentenced to 3 years probation.

The Immigration Judge (IJ) held that Armando was removable as an alien convicted of a crime involving moral turpitude within 5 years of admission into U.S. The IJ held that his CIMT qualified as a petty offense under section 212(a)(2)(A)(ii)(II) of the Act but held that the “stop-time” rule in section 240A(d)(1) was still triggered. The “stop-time” rule rendered Armando unable to establish the requisite 7 years of continuous residence for cancellation of removal.  Armando appealed.

Procedural Posture:
Appealed to Board of Immigration Appeals regarding the denial of his cancellation of removal application

Issue:
Whether the language of section 240A(d)(1) of the Act, “an offense referred to in section 212(a)(2),” incorporates the petty offense exception as it relates to crimes involving moral turpitude

Holding:
No. (see rule) Board sustained the appeal and remanded it back to the IJ. The Board held that the respondent is not barred by his conviction for a single petty offense from establishing the 7 years of continuous residence required to be eligible for cancellation of removal.

Rule:
A conviction for a single crime involving moral turpitude that is subject to the petty offense exception does not “stop time.”

Reasoning:
Board reasoned that the “stop-time” rule phrase, “an offense referred to in section 212(a)(2)” of the Act, also incorporated the petty offense exception. The Board cited the holding in Matter of Garcia-Hernandez, 23 I&N Dec. 590, 593 (BIA 2003) where the Board held that for determining eligibility for cancellation for certain nonpermanent residents, the language of section 240A(b)(1)(C) of the Act, “convicted of an offense under section 212(a)(2),” did not cover a CIMT subject to petty offense exception.

We recently received good news that our motion to reopen was granted. The client was ordered deported a couple years ago after her previous attorney abandoned her in immigration court. After she was ordered deported, she married a US citizen and he filed for her to obtain a green card based on the advice of a previous attorney. The I-130 visa petition was approved; however, the I-485 application to adjust status was denied because she had an outstanding removal order. The client came to me very frustrated with her experiences with other immigration attorneys. She had received bad advice numerous times.

I advised that we must first file a motion to reopen the removal proceedings before we can pursue the adjustment of status. I suggested that we contact Immigration and Customs Enforcement to seek a joint motion to reopen, and the client agreed.

I prepared the request for joint motion to reopen and provided ICE with proof that the husband had significant medical problems and would experience extreme hardship if his wife is not permitted to adjust status and remain in the United States. After some negotiations the ICE attorney agreed to the joint motion to reopen. We filed the motion with the court and the judge granted the motion.

The next step is to ask the judge to terminate proceedings so that we can adjust status through USCIS. There will be an interview and I plan to attend it to make sure the process is concluded smoothly.

If you have an outstanding removal order in Los Angeles Immigration Court, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you to discuss the options available to you.

The Department of Homeland Security (DHS) and Executive Office for Immigration Review (EOIR) today announced its plans to expand backdoor amnesty.  Beginning in late April, DHS will suspend all non-detained dockets for illegal immigrants in four additional jurisdictions, as it previously did in Baltimore and Denver, for two weeks.  These jurisdictions include Detroit, New Orleans, Orlando, and Seattle.  In May, DHS will partially suspend the non-detained docket in New York City and then in July, it will implement the same procedures in San Francisco and Los Angeles.

This means that DHS intends to solely focus on detained cases in these jurisdictions, meaning those who come to the attention of law enforcement.  But if the illegal or criminal immigrant bonds out of jail, they can be put on the non-detained docket and could potentially remain in the U.S.  This decision is just another part of the Obama administration’s plan to grant administrative amnesty to potentially millions of illegal immigrants.

If you or a loved one is in immigration court in Los Angeles or San Diego, contact The Nunez Firm to schedule a free consultation.

A Miami high school valedictorian who gained national attention with her fight to avoid deportation back to Colombia has been granted a two-year reprieve by federal authorities who now say that their bigger goal is going after illegal immigrants who are criminals — and not dutiful students.

Daniela Pelaez, and her sister, Dayana, were ordered to leave the country just last week by a federal immigration judge. But U.S. Immigration and Customs Enforcement on Tuesday issued a statement saying the agency would defer carrying out the court order for at least two years.

The decision, which elated many in South Florida, followed growing local protests aimed at keeping the two teens in the United States, not to mention a steady din of news coverage about the family’s plight. Several lawmakers also interceded on the girls’ behalf, including Republican congresswoman Rep. Ileana Ros-Lehtinen.

Thousands took to the streets just last week in North Miami to protest the court ruling. They held banners and chanted “Justice for Daniela.” The Miami Herald said it was the single largest immigration demonstration in the area since then-President George W. Bush proposed legalizing millions of undocumented immigrants back in 2004.

TRAC released a report a few days ago regarding deportation and removal statistics over the last two years.

In deportation proceedings initiated during July – September 2011 by the Immigration and Customs Enforcement (ICE) in the nation’s 50 plus Immigration Courts, only 7,378 individuals — just 13.8 percent of the total — were charged with having engaged in criminal activities. Of those targeted, the proportion of alleged “criminals” is down significantly from the already low level of 16.5 percent during FY 2010.

Not only has ICE targeted relatively few criminals as the basis for seeking deportation in these court proceedings, but this proportion has been declining steadily throughout the past year: 15.8 percent were charged with engaging in criminal activity during the first quarter period (October – December 2010), 15.1 percent during the second quarter (January – March 2011), 14.9 percent during the third quarter (April – June 2011), and finally 13.8 percent during the fourth quarter (July – September 2011). The average rate across the four quarters for FY 2011 was 14.9 percent.

TRAC’s findings appear to contrast sharply with the White House’s announcement that: “Under the President’s direction, for the first time ever the Department of Homeland Security has prioritized the removal of people who have been convicted of crimes in the United States.” The findings also are hard to reconcile with ICE’s recent press statements that claimed that during the past year the agency had targeted a large and increasing number of convicted criminals for deportation.

If you or a loved one is in immigration court proceedings and need attorney representation, contact The Nunez Firm to schedule a free consultation. Managing attorney Jay Nunez will personally meet with you during a free consultation to discuss and explain the options available to you.